ALASKA WORKERS' COMPENSATION BOARD
P. O. Box 25512 Juneau, Alaska 998025512
SUSANNE SCOTT, )
)
Employee, ) DECISION AND ORDER
Respondent, ) AWCB Case No. 9000746
) AWCB Decision No. 90-0295
v. )
) Filed with AWCB Fairbanks
TOK AREA MENTAL HEALTH CENTER,) December 10, 1990
)
Employer, )
)
and )
)
PROVIDENCE WASHINGTON INS., )
)
Insurer, )
Petitioners. )
)
We heard this petition to dismiss the employee's claim on December 4, 1990 in Fairbanks, Alaska. Attorney Michael McConahy represented the petitioning employer and insurer; attorney Michael Patterson represented the respondent employee. Board member Steve Thompson, representing employers, was not able to attend, so we proceeded with a twomember panel as authorized at AS 23.30.005(f). We adjourned and retained jurisdiction over this claim at the conclusion of the hearing.
ISSUES
1. Shall we award attorney fees and costs against the employee under Alaska Rule of Civil Procedure (ARCP) 37 for failure to attend her dulynoticed deposition:
2. Shall we dismiss the employee's claim for benefits under ARCP 37 for failing to attend the deposition?
3. Shall we schedule a hearing on the merits of this claim on an expedited basis?
CASE HISTORY AND SUMMARY OF THE RELEVANT EVIDENCE
The employee slipped and fell, injuring her back and neck, while leaving the Tok Area Mental Health Clinic on January 18, 1990 where she worked as a clinical psychologist. She filed an Application for Adjustment of Claim dated April 10, 1990, requesting a variety of benefits. The employer controverted the claim with a notice dated July 26, 1990. This notice referred to a medical report by her treating physician at the time, John Joosee, M.D., dated July 16, 1990, which indicated that the employee had recovered to her preinjury condition, was medically stable, and suffered no permanent impairment from the work injury.
In a prehearing held an July 17, 1990 the parties agreed to a deposition of the employee. On July 23, 1990 the employee's attorney, Valerie Therrien, withdrew from the case. On July 25, 1990 the employer attempted to personally serve the employee at her two addresses of record (and also attempted to serve her by mail) with notice of a deposition set for August 6, 1990. Attempts at service failed, so the employer cancelled the deposition. On August 17, 1990 the employer served her and attorney Chancy Croft (who she claimed was considering representing her) with a subpoena for her deposition on August 31, 1990. Mr. Croft subsequently declined to take her case. On August 19, 1990 attorney Dennis McKelvie took her case and requested that the deposition be continued while he prepared for her case. The employer agreed to this. On October 3, 1990 the employer served notice on Mr. McKelvie for a deposition of the employee on October 12, 1990. Mr. McKelvie withdrew from the case, subsequently referring it to attorney Tim MacMillan. On October 11, 1990 the employer served Mr. MacMillan with notice of the employee's deposition on November 2, 1990. Mr. MacMillan declined to represent the employee on October 29, 1990. On the same day the employer made personal service on the employee giving notice of her videotape deposition on Friday, November 2, 1990 in Anchorage, her city of residence. The employee called in at the time of the deposition to refuse to attend until she retained another attorney.
The employer filed a petition and memorandum dated November 16, 1990 requesting us to sanction the employee under ARCP 37 by awarding the employer's deposition costs and attorney fees against her, and by dismissing her case with prejudice. On the same day attorney Michael Patterson entered an appearance to represent her. At a preheating on November 26, 1990 the employee requested an expedited hearing on the merits of her claim, and agreed to submit documentation concerning an alleged medical emergency from her (previously unknown to us) treating physician, a Davis, M.D., in a hearing on December 4, 1990. The parties also agreed to argue the employer's petition to dismiss on December 4, 1990.
The employer submitted an itemized affidavit of attorney fees and costs related to the aborted deposition of November 2, 1990. The employer's counsel claims a fee of $135.00 per hour for 18.4 hours, totalling $2,484.00. The employer claims additional costs of $657.00.
The employer argued in a memorandum of law that the employee has a history of evading depositions and that her refusal to attend the November 2, 1990 deposition was willful and egregious, resulting in unnecessary and unconscionable cost to the employer. It requested us to sanction the employee under ARCP 37 by awarding fees and costs against her. It also cited a series of court decisions from other jurisdictions, which support dismissal of the entire claim for benefits.
The employee submitted a medical report dated October 15, 1990 from Dr. Peterson which indicated that the employee showed evidence of neural deterioration and needed prompt surgery. The doctor also noted that the symptoms were identical to those following a June 8, 1988 work injury to her back in Nevada, and that the injury in Tok was not sufficient trauma to cause her condition.
At the hearing the employee's counsel indicated that Dr. Peterson's opinion concerning the 1988 injury had taken the employee by surprise. He asked to withdraw the request for an expedited hearing, indicated that the employee intended to reopen her Nevada Workers' Compensation claim, and requested a continuance in order to adequately prepare for a hearing concerning a claim for her neck injury and concerning the employer's petition to dismiss. The employer did not object to the request for continuance.
We note that the employee has used the surnames Scott and Wildman in her pleadings, and that the surnames Beuk, Stevenson, Lesley, Ringley, Spangler and King appear elsewhere in the record. In this decision and order as a matter of convenience we have used the surname Scott, the name used by the employee when she reported her injury to us. We will continue to use that name in this case for the sake of consistency. Only one social security number appears for her in the records: 402640120.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Our regulation at 8 AAC 45.070 provide, in part:
(a) Hearings will be held at the time and place fixed by notice serviced by the board under 8 AAC 45.060(e). A hearing may be adjourned, postponed, or continued from time to time and from place to place at the discretion of the board or its designee, and in accordance with this chapter.
8 AAC 45.074 provides; in part:
(a) Continuances, postponements, cancellations, or changes of scheduled hearings are not favored by the board and will not be routinely granted. The board or its designee will in its discretion, grant a continuance, postponement, cancellation, or change of a scheduled hearing without a formal hearing only upon good cause shown by the party requesting the continuance, postponement, cancellation, or change. Good cause exists only when
1) a material witness is unavailable on the scheduled date and the taking of the witness' deposition is not feasible;
2) a party or representative of a party is unavailable because of an unintended and unavoidable court appearance;
3) a party or representative becomes ill;
4) a party, a representative of a party, or a material witness becomes unexpectedly absent from the state;
5) irreparable harm will result from a failure to grant the requested continuance, or
6) an agreed settlement has been reached by the parties less than 14 days before a scheduled hearing, but it does not conform to 8 AAC 45.070(d)(1).
7) the board determines at a scheduled hearing that due to surprise, excusable neglect, or the board's inquiry at hearing, that additional evidence or arguments are necessary to complete the hearing; or
8) the hearing was set under 8 AAC 45.160(d).
b) A request for a continuance must be filed in writing and served upon the opposing parties. A request for a continuance based upon the absence or unavailability of a witness must be accompanied by an affidavit setting out the facts which the party expects to prove by the testimony of the witness, the efforts made to procure the attendance or testimony of the witness, and the date when the absence or unavailability became known.
I. Withdrawal of the Request for an Expedited Hearing
The employee now requests that we dismiss her request for an expedited hearing because it appears that the condition creating the medical emergency is related to an earlier compensable work injury in another jurisdiction. She desires her remaining claim for a neck injury to follow the normal course of our litigation. The employer agrees with this. Under 8 AAC 45.070(a) we have substantial discretion in the scheduling of hearings before us. We find it in the interest of both parties to deny the request for an expedited hearing, and to allow the parties to reframe the disputes in the case. We will dismiss the employee's request for an expedited hearing on the merits, instructing the parties to follow the normal procedures laid out in our regulations.
II. Request for a Continuance
The employee also requests a continuance concerning the employer's petition to dismiss. Continuances of scheduled hearings are governed by 8 AAC 45.074, which requires a written request and affidavit, and also requires a showing of "good cause" from one of seven defined categories. The employee failed to provide either a written request or a supporting affidavit. Additionally, after examining the record we find that none of the categories of good cause apply to the employee's predicament. Nevertheless, we can apply general principles of equity in our proceedings when an adequate legal remedy is not available. See Kritikos v. Alaskan Bounty Corporation, AWCB No. 880320 (November 19, 1988).
We note that the employee's counsel was willing to accept her case at a very late date and that he attempted to have her claim adjudicated in haste, responding to what he perceived as a medical emergency. We exercised our discretion during a preheating (with the agreement of the parties) to bring these issues to a hearing quickly, without the formal notice period provided at 8 AAC 45.060(e). The subsequent evidence from Dr. Peterson indicated that the alleged medical emergency relates to another injury in another claim. Consequently, the overriding concern for the employee's wellbeing that has propelled us and the parties to this hearing has now dissipated. We find that we shared complicity in bringing the parties to a premature consideration of the petition to dismiss, and we conclude that we were estopped from requiring them to present their cases on that issue at our December 4, 1990 hearing.
Under our authority at 8 AAC 45.070(a) we adjourned the hearing, retaining jurisdiction over the employer's petition to dismiss /petition for attorney fees. As an equitable remedy, we will give the parties 30 days from the issuance of this decision and order to set a briefing schedule or a new hearing date with our Fairbanks office compensation officer. If a new hearing date has not been set within the 60 days we have provided, we will find that the parties have waived additional evidence or argument on the issue, and we will decide the petition on the basis of the documentary record.
ORDER
1. At the employee's request the motion for an expedited hearing on the merits of this claim is dismissed.
2. Under AS 23.30.070(a) we have adjourned our hearing of December 4, 1990. We retain jurisdiction over the employer's petition to dismiss/petition for attorney fees dated November 16, 1990 for 30 days from the issuance of this decision. We will close the record and decide the petition on the basis of the documentary record at the end of that period unless a new briefing schedule or hearing date has been set.
DATED at Fairbanks, Alaska, this 10th day of December, 1990.
ALASKA WORKERS' COMPENSATION BOARD
/s/ William S. L. Walters
William S.L. Walters, Designated Chairman
/s Joe J. Thomas
Joe J. Thomas, Member
WSLW/ml
If compensation is payable under terms of this decision, it is due on the date of issue and penalty of 20 percent will accrue if not paid within 14 days of the due date unless interlocutory order staying payment is obtained in Superior Court.
APPEAL PROCEDURES
A compensation order may be appealed through proceedings in the Superior Court brought by a party in interest against the Board and all other parties to the proceedings before the Board, as provided in the Rules of Appellate Procedure of the State of Alaska.
A compensation order becomes effective when filed in the office of the Board, and unless proceedings to appeal it are instituted, it becomes final on the 31st day after it is filed.
CERTIFICATION
I hereby certify that the foregoing is a full, true and correct copy of the Decision and Order in the matter of Susanne Scott, employee/respondent; v. Tok Area Mental Health Center, employer; and Providence Washington Ins., insurer/petitioners; Case No. 9000746; dated and filed in the office of the Alaska Workers' Compensation Board at Fairbanks, Alaska this 10th day of December, 1990.
Clerk
SNO